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Restructuring Clemency: the Cost of Ignoring Clemency and a Plan for Renewal Rachel E

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Restructuring Clemency: the Cost of Ignoring Clemency and a Plan for Renewal Rachel E +(,121/,1( Citation: 82 U. Chi. L. Rev. 1 2015 Provided by: The University of Chicago D'Angelo Law Library Content downloaded/printed from HeinOnline (http://heinonline.org) Tue Feb 2 13:10:30 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0041-9494 The University of Chicago Law Review Volume 82 Winter 2015 Number 1 © 2015 by The University of Chicago SYMPOSIUM Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal Rachel E. Barkowt & Mark Oslertt The use of the pardon power is a necessary element in a fully functioning sys- tem of criminal law. Recent presidents, however, have largely ignored this power- ful tool, even as many have sought to expand the power of the office in other ways. This Essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it. Specifically, we advocate for the creation of a clem- ency commission with a standing, diverse membership. While this commission should have representation from the DOJ and take the views of prosecutors seri- ously, the commission itself should exist outside the Justice Department, and its recommendations should go directly to the White House. This new model of clem- ency should also pay attention to data, both to create uniform standards and to focus the use of the pardonpower as a management tool. An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry. This is the time to create a better machine of mercy that will serve the Constitution's mandate no matter who holds the presidency. t Segal Family Professor of Regulatory Law and Policy and Faculty Director, Cen- ter on the Administration of Criminal Law, New York University School of Law. tt Professor of Law, University of St. Thomas School of Law. Thanks to Aimee Carlisle, Kadeem Cooper, Heather Gregorio, Steve Marcus, Neal Perlman, and Sam Zeitlin for excellent research assistance. We acknowledge with grati- tude the financial support of the Filomen D'Agostino and Max E. Greenberg Faculty Re- search Fund at NYU. The University of Chicago Law Review [82:1 INTRODUCTION The morning of March 30, 2010, presented a remarkable moment. The US Supreme Court was hearing argument in Dil- lon v United States.' The case concerned whether Percy Dillon, a convicted crack dealer, could receive a reduction in his sentence based on postconviction rehabilitation.2 It was going poorly for Dillon: the Court seemed disinclined to consider the relief that he sought. Then things took a dramatic turn. As then-solicitor general Elena Kagan looked on in surprise from the counsel ta- ble, Justice Anthony Kennedy pointedly raised an unexpected issue in the following exchange with Assistant Solicitor General Leondra Kruger: JUSTICE KENNEDY: The Petitioner's brief opens with a statement about his rehabilitation. We don't know if that has been contested. You don't respond to it. But let's assume that's all true. He established schools, and he helped young people and so forth. Does the Justice Department ever make recommendations that prisoners like this have their sen- tence commuted? MS. KRUGER: I am not aware of the answer to that, Jus- tice Kennedy. It is certainly true that evidence of that type of rehabilitation factored into the government's recommen- dation in this case that Petitioner- JUSTICE KENNEDY: And isn't the population of prisoners in the Federal prisons about 185,000 right now? MS. KRUGER: I think- JUSTICE KENNEDY: I think it is. And were there-how many commutations last year? None. How many commuta- tions the year before? Five. Does that show that something is not working in the system? 185,000 prisoners? I think that's the number. MS. KRUGER: I-I'm not prepared to speak to that ques- tion today, Justice Kennedy. 3 This unusual exchange reflects a state of crisis in an often- hidden corner of criminal law: the use of the pardon power as a necessary element in a fully functioning criminal-justice system. 1 560 US 817 (2010). 2 Id at 822-23. Dillon sought this reduction based on a retroactive reduction in the Sentencing Guidelines relating to crack offenses. Id at 823. 3 Transcript of Oral Argument, Dillon v United States, No 09-6338, *40-41 (US Mar 30, 2010), archived at http://perma.cc/E57X-PDNG (paragraph breaks omitted). 20151 Restructuring Clemency The Framers took the pardon power seriously, creating it as a virtually unchecked power of the presidency.4 Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways.5 This Essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it. Presidents may have different substantive standards for when the use of clemency is appropriate, and clemency rates may therefore rise and fall according to who holds the presidency.6 However, the current administrative process for reviewing clemency petitions stands in the way of just about any vision that a president may have about invoking this authority. Recent presidents across the political spectrum-from President Bill Clinton to President George W. Bush-have been unable to systemically grant clem- ency even when they have wanted to do so.7 If the wisdom of the Framers is to be respected, each gear in the machine of the gov- ernment that they created must be kept in good order- clemency is no exception simply because the power itself is so sweeping. Indeed, clemency stands as a case study in how poor administrative design can foil even broad substantive powers. Taking clemency reform seriously is particularly important now. After a first term in which he granted fewer clemency peti- tions than any modern president, President Obama has signaled that he intends to take a more vigorous approach to clemency in his second term. In the first several months of 2014, that meant replacing the pardon attorney, actively soliciting more petitions that meet the president's announced criteria, 9 encouraging US Attorneys to support clemency in some cases, 0 and temporarily 4 See Rachel E. Barkow, The Ascent of the Administrative State and the Demise of Mercy, 121 Harv L Rev 1332, 1345-46 (2008). See also Part I.E. 5 For example, President Barack Obama and some of his predecessors have sought to enlarge the president's war powers. See Curtis A. Bradley and Trevor W. Morrison, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum L Rev 1097, 1099-1100 (2013); Michael D. Ramsey, Meet the New Boss: Continuity in Presidential War Powers?, 35 Harv J L & Pub Pol 863, 863-64 (2012). 6 See Jeffrey Crouch, The President's Power to Commute: Is It Still Relevant?, 9 U St Thomas L J 681, 685-86 (2012) (discussing variation in clemency rate by president). 7 See Part L.C. 8 US Department of Justice, Press Release, Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Broad New Criteria for Applicants (Apr 23, 2014), archived at http://perma.cc/S93G-AKAU. 9 Id. 10 Id (noting that "Deputy Attorney General Cole sent a letter to all of the 93 U.S. attorneys asking for their assistance in identifying meritorious candidates"). At the NYU Center on the Administration of Criminal Law's annual conference in 2014, Kathryn The University of Chicago Law Review [82:1 assigning more lawyers to the Office of the Pardon Attorney to process clemency petitions." These initiatives will likely assist President Obama in achieving his stated goals for clemency, which are focused on granting commutations to individuals who would be sentenced differently today based on changes in the law.12 It is not a model of structural reform but a plan to work within the existing framework to find and process more cases in which to grant commutations based on factors outlined specifi- cally by the president.13 While we applaud the president's efforts, we believe that lasting, meaningful clemency reform requires more. Specifically, the clemency process should be restructured to achieve its con- stitutional functions not only for this president, but for all presi- dents. Future presidents may not want to limit commutations to only those situations in which a change in the law would dictate a change in sentence. They may wish to have pardon attorneys look for injustices in individual cases based on the specific facts of those cases, even if the underlying law has not changed. They may wish to use clemency as a means for policing federal prose- cutors who exercise their discretion in a way that does not corre- spond to the president's and attorney general's policies. They may also seek more insulation from political criticism and a pro- cess that is based as much as possible on what we know about the relationship between recidivism, length of sentence, collat- eral consequences, and rehabilitation. None of these goals can be achieved under the announced Obama reforms. These goals re- quire more than a shift in resources and personnel. They require wholesale structural change. Part I of this Essay sets the stage for the discussion by con- sidering the fading of the pardon power and the rusting out of the clemency process.
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